Come on! The sky isn’t falling. Demanding social media access from employees and potential hires and is most definitely the exception and not the rule. And I’ll set the record straight on this bad business practice after the jump…

Old news, and overblown to boot

For starters, this is old news and only involves a scant few employers.

This whole mishegas was rekindled last week when the Associated Press published this story, entitled “Job seekers getting asked for Facebook passwords.” (I know this because about 10 readers of this blog forwarded it to me). I say “rekindled” because the AP article discussed two notorious, but dated, instances in which employers — the City of Bozeman and the Maryland Department of Corrections — made the mistake of requesting social media logins and passwords as a condition of employment.

Unfortunately, not only does the AP article contain several dated horror stories that jumped the shark long before Kris Humphries popped the question to Kim Kardashian (remember that?), it sensationalizes how businesses spy on employees and job candidates:

In their efforts to vet applicants, some companies and government agencies are going beyond merely glancing at a person’s social networking profiles and instead asking to log in as the user to have a look around….Since the rise of social networking, it has become common for managers to review publically [sic] available Facebook profiles, Twitter accounts and other sites to learn more about job candidates. But many users, especially on Facebook, have their profiles set to private, making them available only to selected people or certain networks.

Companies that don’t ask for passwords have taken other steps — such as asking applicants to friend human resource managers or to log in to a company computer during an interview…”

Demanding passwords may not be legal

I’m not sure of the source for these “statistics.” What I can tell you is that when I presented “Social Media for HR: Practical Guidance from a Generation Y Attorney” a few weeks ago to a packed house of HR professionals at the SHRM 2012 Employment Law and Legislative Conference in Washington, D.C., no one in the room — not a single person — admitted to requiring job applicants to turn over private social media information, including logins and passwords. Most rolled their eyes or laughed at this “practice.” (Maybe 10 percent acknowledged accessing publicly available social media content, which is legal, to conduct background checks on potential hires).

You know why employers don’t demand passwords? It may not be legal.

As I wrote here last year, the Stored Communications Act makes it illegal for a person or entity to intentionally access electronically-stored communications without authorization. In the hiring context, conditioning a job offer on a candidate having to hand over the keys to a social media account may be viewed as coercive; akin to access without authorization. Indeed, Facebook’s Chief Privacy Officer, Erin Egan, issued a statement last week in which Facebook threatened to take action against employers that demand that employees provide access to private portions of their Facebook accounts:

Facebook takes your privacy seriously. We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.”

Although the statement doesn’t specifically mention which law(s) Facebook would avail itself in coming after employers, in the past, Facebook has relied upon the Computer Fraud and Abuse Act (hat tip to the Trading Secrets blog). And I imagine that the Stored Communications Act would another be weapon in the Facebook arsenal. Just ask the ACLU, who previously brandished the Stored Communications Act in a cease and desist letter to the Maryland Department of Corrections. It should come as no surprise then that the ACLU praised Facebook for speaking out against forcing job candidates to divulge private information.

Why would employers bother?

As if the spectre of Facebook suing weren’t bad enough, employers who demand that job candidates and employees reveal online passwords, may have new federal legislation with which to deal. Last Wednesday, Tony Romm at Politico reported that Senator Richard Blumenthal (D-CT) may draft legislation that would ban employers from asking job seekers for access to their private Facebook accounts.

Here is the Sen. Blumenthal speaking to Bloomberg about it. Yesterday, Michelle Myers at CNET reported here Blumenthal and Sen. Charles Schumer (D-NY) asked the Department of Justice and the Equal Employment Opportunity Commission to investigate what they call a “new disturbing trend” of prospective employers demanding job applicants to turn over their user names and passwords for their social networks.

That’s the question I raised last year when I opined that demanding access to a candidate’s password-protected online information completely undermines an early opportunity to build a long-term trusting working relationship with a new hire:

If a job applicant posts questionable material online such that anyone can view it, then — content aside — he/she displays bad judgment. Conversely, restricting public access to online content –good or bad — shows that the candidate can keep his/her personal life personal. And there is something to be said about an employee who know how to keep his/her personal life out of the workplace.

How many questions do you ask in a job interview about a candidate’s personal life? Exactly. Generally, employers do not require applicants to pull skeletons out of the closet. Why should the standard be any different for online behavior? It shouldn’t.”

A non-story for the vast majority of employers

First, it is hard to dispute that some minimal level of privacy should be afforded by an employer to an employee or job applicant. Certainly there may be circumstances where this respect needs to give way to a competing and compelling interest. But absent such circumstances, what is the need to peruse a person’s private Facebook profile?”

It should then come as no surprise that a big reason why employers don’t conduct social-media background checks of potential hires — let alone demand access to privacy-filtered information — is that few care about employees’ private lives insofar as employees check their outside issues and problems at the door when they come to work.

But, if you are one of the few employers, which does demand that employees and potential hires provide you with full access to their social media content, unless you have a damn good reason — I dunno, maybe you operate the Secret Service — you may want to consider discontinuing that practice pronto.

The rest of you — the vast majority of you — should take this whole forcing employees to turn over passwords to their social networks as what it really is: a non-story.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .

If an employee has access to the internet which will allow them to us Facebook, an employer can indeed monitor that usage, and take proper actions to stop it. . Beyond that, what an employee does in his/her home is private.
I’m wondering why the Privacy Act of 1974 has not come into play in the cases where an employer has requested or demanded FB sign is or passwords from potential hires. As long as a new hire is aware of the policies and procedures of a company, and adheres to them by signing a legal document to that fact, no employer has the right to request said information.

Scarce

Congratulations, you write so badly that you make absolutely no sense.